UC Berkeley Web Feature

BERKELEY – Gerrymandering,
the redrawing of congressional districts to ensure that
elections favor a particular political or ethnic
group, has
been around almost as long as the Constitution itself.
The term was coined when Eldridge Gerry, one
of the signers of the Declaration of Independence,
sought to engineer his reelection as governor of
Massachusetts in 1811 by rearranging
voting districts so crudely that one
resembled a salamander.

Redistricting in Gerry's era, however, was more guesswork
than guarantee. Using today's computer software to slice
and dice voters' demographic data
with razor-shap
precision, state legislators can practically dictate election
outcomes for their districts.

Gerrymandering 101

Packing - Stuffing
most of one party's voters into as few districts
as possibleCracking - Dispersing
blocs of one party's voters into several districts
so that they become a harmless minority Kidnapping - Drawing
district lines so that two incumbents from the
same party must now run against each other

Both Democratic and Republican parties are well-versed
in gerrymandering, but many observers believe that the
practice
has become
even
more
cutthroat since the 2000 election gave Republicans a slim
majority in the House.
In Florida,
Pennsylvania, Ohio, and Michigan, states for which Al Gore
and George W. Bush each took half the vote, the
Republican party
has gerrymandered districts to capture 51 of 77 House
seats. And in 2002, only two years after the traditional
U.S. Census-driven redistricting, Texas Republicans
sought to redraw
the lines
yet again — in some cases, in shapes more like centipedes
than salamanders, causing a group of 51
Democratic congressmen
to stall the plan's passing by fleeing the state.

Like the mythical lizard it is named after, said
to be able to endure fire unscathed, gerrymandering has
survived
several
halfhearted
legal attempts at curtailment. Until this December,
the most recent was 1986's Davis v. Bandemer, when the U.S. Supreme Court ruled
that political gerrymandering that violates the equal protection clause is "justiciable," meaning
subject to the court's scrutiny. Now the Supreme Court is taking another swing
at gerrymandering. In Vieth v. Jubelirer (opening
arguments took place December 10), some Democrats
argue that, as designed by Republicans, the redistricting plan for Pennsylvania
following the 2000
census would cost them an "unconstitutional"
number of seats in the House:on
paper, the new plan would give Republicans 12 or more
of 19 seats
in a state where voters are almost exactly divided between the two parties.

Politicians and legal scholars alike are watching the
Pennsylvania case closely. Will the Supreme Court use Vieth
v. Jubelirer to smack the hands of both parties and
tell them to play more fairly? To get a sense of what's
at stake politically, the NewsCenter interviewed UC Berkeley professor and
redistricting expert Bruce Cain. And in a second interview,
to be published on Tuesday, January 20, constitutional
law scholar Jesse Choper discusses the legal context of
court intervention.

Part One of Two
Bruce Cain is the Robson Professor of
Political Science and director of UC Berkeley's Institute of Governmental
Studies. Cain has consulted on
redistricting for many legislative and citizens' groups
and is the author of "The Reapportionment Puzzle" (1984), and coauthor
of "The
Personal
Vote" (1987) and "Congressional Redistricting" (1992), now in
its eighth printing.

Powell: Has gerrymandering changed in the last 10 years?

Cain: What's changed is the political context
of redistricting. We're in an unusual period in which the Democratic and Republican
parties are at relatively even strength both in terms of their support in the
electorate and of their margins in the House. And so every single seat matters.
Most seats are safe or competitive because there's not much else you can
do with them. You can't make a seat in Berkeley or Oakland competitive for
the
Republican party; similarly, in the southern part of Orange County there's
no way you can make it competitive for the Democratic party. But on the margins,
there are a lot of seats that could swing one way or the other depending on
how the lines are drawn. And since the parties are so closely matched, the
marginal differences that come about because of redistricting are more important
than they were in the '60s, say, when Congress was heavily dominated by the
Democratic party.

Is this why Republicans in Texas redistricted in 2002 instead of waiting for the 2010 census?

Absolutely. Whether you're talking about Texas or Colorado or Pennsylvania, you're talking about those few states where the conditions are right for the Republicans to use redistricting as a tool to increase their party size.

And those conditions are where the state's governor and a majority of the legislature belong to the same party.

'Most voters don't know anything about redistricting and don't care. They
don't see the lines.'

-Bruce Cain, UC Berkeley political science
professor

Yes. You need to have control of the legislature and control of the governorship.
And in Texas, for example, the congressional delegation before the redistricting
was relatively close between Democrats and Republicans, yet the state is overwhelmingly
a Bush state. So the potential to transform to a more Republican tilt is very
high, and the opportunity is there because Republicans control the legislature
and the government. In most states you have divided government. And in some states
like California, even though you have one-party control, there's not much potential
for the Democrats to add many more seats to their congressional delegation.

In the Pennsylvania case now before the Supreme Court, Democrats are arguing that it is "unconstitutional to give a state's million Republicans control over ten seats while leaving a million Democrats with control over five." Is it unconstitutional or merely politics as usual?

Some Democrats are arguing that. Back when Phil Burton drew the lines
in California [as a state congressman in 1981], it was Republicans who were
claiming unfairness and wanted the court to intervene. The shoe was on the
other foot in Indiana in the 1980s or Pennsylvania in the year 2003. The aggressor
claims immunity from the court and the victims want the courts to protect them.

Why do you think the court agreed to hear this case now?

There are two theories floating around. The first is that the court's seriously
interested in getting involved in adjudicating these gerrymandering cases.
Theory No. 2 is that the court wants to drive a stake into the heart of the
1986 Bandemer decision, which extended the prohibition on racial gerrymandering
to political gerrymandering. But in the intervening years since then, there
have been no rulings that have used Bandemer to deem a redistricting plan unconstitutional.

Isn't that because Bandemer's standard of determining unconstitutionality - that
a political party has to be "entirely shut out of the process" - is so vague
as to be useless?

It's not so much vague as it is tough. Basically the court set the threshold
very high - you have to show that this party has been systematically excluded
from power, has no way to address this inequity, and that the gerrymandering
is part of this exclusion. That's not true in most cases, even in hard-core
Democratic and Republican states. California is a hard-core Democratic state,
but our new governor is a Republican. So such exclusion, which was borrowed
from the racial gerrymandering cases, is a very, very high standard to apply
to political gerrymandering. No plan has risen to the level of constitutional
significance since the Bandemer definition. So it's quite possible that the
court wants to say explicitly, "Don't give us any more of this nonsense, we
set the bar very high on purpose and we're not going to be drawn into this
because it's a fundamentally political fight."

You don't foresee the court ruling against political gerrymandering, then.

I was surprised about its recent campaign-finance decision, so I could be
surprised again. But if I were to bet, I'd bet that the court backs away from
getting involved in all this.

But should it? If geerrymandering essentially lets the
legislature decide who gets elected, doesn't that undermine
the legitimacy of the electoral process?

I think it does, but actually, it's not the voters who want competition, it's political scientists like me who think it's better for the system to have competition. Most voters don't know anything about redistricting and don't care. They don't see the lines. And if you go to the reapportionment hearings, most voters will say "I want to be in the district with more people like me." Democrats want to be in Democratic areas, and Republicans want to be in Republican areas, and they're not interested in competitive seats.

And overall, then, gerrymandering tends to balance out on a state-by-state basis in the House?

Not completely. In 2000 there were more states where the Republicans had control than Democratic states. But on the other hand, there were more states in which neither party had control than there were ones with single-party control. There were more states in which you had a bipartisan gerrymander than states where you had a partisan gerrymander, and that's always been the case.

What do you think about the argument that gerrymandering increases political partisanship by making it unnecessary for politicians in safe seats to "appeal to the center"?

That's where we get into the confusion that people have. There are really two types of redistricting: partisan and bipartisan. In the first type, the majority party will create slightly less safe seats in order to stretch its strength more efficiently. You don't want to win seats 70-30, you want to win them 57-43 so you can spread out your voters and get as many seats as possible. So you take a little risk and create slightly more competitive seats.

In a complete bipartisan gerrymander, everyone's going to have wildly safe seats. So in effect, what's happening in Texas and Pennsylvania, if they're really doing it right, is they're creating some seats that are a little less safe in the interests of trying to expand the number of districts they get. And that has implications, because the really, really safe seats do tend to produce more ideological candidates. There's a confusion in the public discussion, however, because really safe seats require concentrating your strength, and that's not how you take seats away from the other party.

Roughly 400 of the House's 435 seats are considered "safe." Iowa, which has a neutral third party decide its redistricting, has by far the most competitive races. Why shouldn't all states use that model?

That system does seem to work pretty well in Iowa, but it would be a lot harder in New York or California. Iowa is unusual because it's such an ethnically homogenous state. I spent the last round of redistricting advising citizen commissions in San Diego, San Francisco and Arizona that were put together by initiative and involved appointing blue-ribbon panels. And yet politics were all over the process. People were influencing these commissioners; commissioners had their own agendas. Take California, where we have not only the Democrat versus Republican issue, but urban versus rural, white vs. nonwhite, voting rights issues, all kinds of things. The politics in this state are just extremely complex, and the level of suspicion toward any commission is going to be very, very high.

Why don't we just use computers to draw the most compact and contiguous districts regardless of demographics? What's the disadvantage?

This brings up the distinction between something being procedurally fair and substantively fair. Something can be procedurally fair because it's neutral, like flipping a coin. But that doesn't mean that it's going to be substantively fair, because what if your random line-drawing process really screws one party over another?

Coming Tuesday, January 20:Jesse
Choper, professor and former dean at UC Berkeley's Boalt Hall School of Law,
discusses the legal context of the gerrymandering case

Here's a good example: in the early 1990s, [then-California Governor] Pete Wilson hired a geographer from out of state to draw district lines randomly. Completely fortuitously, the district lines that he drew collapsed the seats of every female member of the legislature and put them in with somebody else. That's the kind of thing that can happen with a randomizing plan.

In the short term, yes. But isn't the idea that a neutrally driven process over time will end up being more fair?

It's easy for you as a writer to be that philosophical, but that's not how the politician or the politician's wife or the people who elected him are going to feel. As an academic, I can find abstractions to be appealing, but the reality is, when you do these things you can't think about the abstractions. It's not just the politicians who feel that way, it's also the voters.